Abdur Rahman, J.
1. These are two connected second appeals and relate to costs. They arise out of a suit for redemption filed by one Ramaswami Chettiar in the following circumstances. Originally the eastern portion of a house belonged to one Karuppanna Asari and the western portion to Sundaram Asari. Karuppanna Asari appears to have died before 1918 and a deed of usufructuary mortgage was executed by Sundaram and Karuppannan's heirs in respect of the whole of the house on 13th April, 1938 (Ex. B) for a sum of Rs. 1,200, in favour of defendant 1 who, along with an undivided brother of his, defendant 2 in this case, executed a simple mortgage of several properties including the sub-mortgage of the abovementioned house in favour of the third defendant in July, 1923 (Ex. I). On 11th May, 1932, Karuppannan's heirs sold the eastern portion of the house to the plaintiff under the sale-deed (Ex. A) and left a sum of Rs. 600 out of the sale price to be paid towards the mortgage executed in favour of the first defendant in 1918. Sundaram Asari had died in the meantime and his heirs executed a usufructuary mortgage on 29th May, 1932, in favour of the plaintiff (Ex. C) and left a sum of Rs. 600 with him for payment to the first and the second defendants. Since the first and second defendants had to surrender possession of the house to the plaintiff on account of the sale and the usufructuary mortgage, they did so in June, 1932, and executed a rental agreement in favour of the plaintiff. Soon after this, the plaintiff tendered a sum of Rs. 1,200 to the first and second defendants in the first instance and then at their request to the third defendant who refused to accept the same. On 10th September, 1932, the plaintiff filed a petition under Section 83 of the Transfer of Property Act and deposited Rs. 1,200 in Court in full satisfaction of the money due to the first and the second defendants or their mortgagee, the third defendant. The first two defendants did not contest the petition but the third defendant did and objected to receive the money in full satisfaction of his claim in respect of the house which had been, as stated above, partly purchased by and partly mortgaged under Ex. A and Ex. C with the plaintiff in May, 1932. The petition was therefore dismissed. The plaintiff then filed the present suit for redemption. No appearance was put in the case by the first and the second defendants but the third defendant raised several defences which failed and the trial Court passed a decree for redemption directing that the sum of Rs. 1,200, which had been deposited by the plaintiff in Court in proceedings taken by him under Section 83, Transfer of Property Act, be paid to the third defendant; but the first and second defendants who had remained ex parte were ordered to pay the costs of the suit to the plaintiff, while the third defendant was ordered to bear his own costs. The first and second defendants then filed an appeal to the Court of the. District Judge of Madura who ordered that the costs should have been awarded jointly against defendants 1 to 3 leaving it to the plaintiff to recover them from any defendant that he liked. Against this decision of the learned District Judge two second appeals have been filed in this Court, In S.A. No. 896 of 1934 the first and the second defendants contend that they should not have been ordered to pay the costs of the suit to the plaintiff, while in the other (S.A. No. 853 of 1934) the third defendant claimed that no costs should have been awarded against him but that the lower appellate Court should have directed the plaintiff to pay his costs.
2. The first question which is to be decided in these appeals relates to their competency.
3. In ordinary cases an appeal for costs will only lie
(a) when a question of principle is involved;
(b) when the discretion has not been judicially exercised; or
(c) when the order has been passed in consequence of some misapprehension of law or fact.
Relying on these principles it was argued that the costs of the suit being in the discretion of the Court the Court had full power to determine by whom they were to be paid and the order being of a discretionary nature can, or at least should, not be interfered with in second appeals. A decision by a division bench of the Lahore High Court in Sital Das v. Punjab and Sind Bank, Ltd., Lyallpur I.L.R.(1935) 17 Lah. 520 was cited in which it was held on appeal from a suit brought to enforce a mortgage that the Court had an absolute discretion in the matter of costs under Section 35, Civil Procedure Code, and that there was no principle of law which made it wrong or improper for a Court to saddle the real contesting defendants to a suit with costs. It has been contended that this may be true of cases which do not fall within the provision of Order 34 of the Civil Procedure Code, but the cases which fall within the scope of that order must be decided in accordance with the rule embodied in Order 34, Rule 10. This rule provides that in finally adjusting the amount to be paid to a mortgagee in a suit for redemption, the Court shall ordinarily add the costs of the suit to the mortgage money unless the conduct of the mortgagee has been such as to disentitle him thereto. It was therefore urged that the Lahore case was not correctly decided and that in a suit under Order 34 the Court was bound to add the costs of the suit to the mortgage money when adjusting the amount to be paid to the mortgagee, unless his conduct had been such as to disentitle him front recovering them.
4. There is considerable force in this argument, particularly as I find that the opening words used in Section 35, Civil Procedure Code, lend support to the argument now advanced before me and the learned judges' attention does not appear to have been drawn in that case to the provisions of Order 34, Rule 10, Civil Procedure Code. Earned Counsel for the appellant referred to Order 65, Rule 1 of the Supreme Court Rules on which the present legislation was founded and which lays down that costs of all proceedings in the Supreme Court shall be in the discretion of the Court but nothing in those rules shall deprive a mortgagee who has not unreasonably instituted or carried on or resisted any proceedings of any right to costs to which he would be entitled according to the rules hitherto acted upon in the Chancery Division. Two English cases were also cited in support of this contention. It was held in Cotterell v. Stratton (1873) 8 Ch. App. 295 that the right of a mortgagee in a suit for redemption to the general costs of suit is well established unless he has forfeited the same by some improper defence or other misconduct and does not rest upon the exercise of a discretion by the Court. The other case was that of Charles v. Jones (1886) 33 Ch. D. 80 in which it was held by Lopes, L.J., that the mortgagee had an absolute right to costs unless they were forfeited by his misconduct and the matter was within the discretion of the Judge only when they were forfeited by his misconduct. I would therefore assent to, the general propositions urged before me, (1) that unless a mortgagee is found to be disentitled by his conduct from recovering his costs, he would be able to claim as of right that costs of his suit be added to the mortgage money which is found by the Court to be due to him; (2) that in cases covered by Order 34, a mortgagee who has been deprived of his costs by the decision of a Court would be entitled as of right to appeal to a higher tribunal; and (3) that the provisions contained in Section 35, Civil Procedure Code, are inapplicable to mortgage suits to which those stated specifically in Order 34, Rule 10 apply.
5. Coming to the facts of this case it was contended on behalf of the first and, the second defendants in their appeal (S.A. No. 896 of 1934) that the award of costs by the lower Court against them was wholly unwarranted inasmuch as no misconduct of theirs was either shown or even alleged which would have entitled it to award costs against them. Having gone through the facts of the case I find that the conduct of the first and the second defendants has been entirely free from blame. They did not even care to defend the action for redemption to which they were impleaded as necessary parties and an order by the Court awarding costs against them cannot be, in the circumstances, justified. Their appeal is therefore accepted.
6. As for the second appeal (S.A. No. 853 of 1934) the third defendant also contends that the order of the lower appellate Court directing costs to be paid by him to the plaintiff was incorrect. As I have stated above, this defendant had filed a written statement in which he had not only urged that the amount deposited by the plaintiff was insufficient but had also raised a plea of collusion alleged to have been existing between the plaintiff on the one hand and the defendants 1 and 2 on the other. This was a frivolous plea and was not substantiated by, him. His conduct has in resisting the petition under Section 83, Transfer of Property Act and in defending the suit filed for redemption later, been such as to disentitle him from getting any costs in the action and I cannot hold that the award of costs against him by the lower appellate Court was in the circumstances improper. The result is that S.A. No. 896 of 1934 would be accepted to the extent that the order awarding costs against them by the trial Court and the lower appellate Court will be set aside, but S.A. No. 853 of 1934 will be dismissed with the result that the plaintiff would be entitled to recover his costs, from this, defendant only. The successful parties will be entitled to their costs in this and in the lower appellate Court.